In an article published in the Daily Business Review, partners Justin B. Kaplan, Kimberly Freedman, and Melissa J. Gomberg discuss a change to how Telephone Consumer Protection Act class actions are litigated following a decision from the U.S. Court of Appeals for the Eleventh Circuit last summer in Drazan v. Pinto, wherein classes that might include members who do not have Article III standing under the Eleventh Circuit precedent are now improper, even if those class members would have standing in other jurisdictions.

“For cases filed in district courts in Florida, Alabama, and Georgia, this means that when parties seek class certification for the sole purpose of a settlement under Rule 23(e), every class member must have standing under Eleventh Circuit standards,” they wrote. “It also means that — for the first time — a standing analysis of all potential class members must be conducted at the class certification stage.

“The practical implications of Drazen may be profound for plaintiffs and defendants — and might be at odds with class actions’ raison d’etre, which is to provide redress to a large number of people who suffered similar harm, avoid duplicate individual lawsuits, and provide finality to defendants. By consolidating all potential plaintiffs’ claims in a single proceeding, a defendant can obtain finality with respect to all future actions rather than be subject to an unknown number of repeated suits and possibly inconsistent judgments. Going forward, it can no longer be said that defendants in TCPA class actions filed in the Eleventh Circuit will definitively benefit from the finality class actions settlements are meant to provide.”

To conclude, the authors note that plaintiff’s counsel must take Drazen into consideration when evaluating whether to accept an engagement, and both plaintiffs and defendants have more to consider when determining the settlement value or whether to settle at all.